Petroff

This is an appeal from an order granting a new trial in the above-entitled consolidated actions after a judgment in favor of the defendant which was rendered in an automobile casualty.

On December 28, 1927, at 11 o’clock in the forenoon, the defendant was driving his Essex automobile easterly along the public highway between Vacaville and Dixon. He was accompanied by the three plaintiffs, who were riding with him as his guests. They were going duck hunting. It had been raining. The pavement was wet. There is a conflict of testimony regarding the essential facts of the case. There is, however, substantial evidence to indicate that the defendant was driving at a negligent rate of speed, in close proximity to another machine which preceded his car, and that he sought to pass this automobile without first ascertaining that his left-hand portion of the highway was free from approaching vehicles. There is evidence to support the assertion that the defendant was driving at the rate of thirty-five or forty miles an hour. His machine had skidded on the wet pavement just prior to the accident, and one of the plaintiffs warned him against excessive speed. About three miles beyond Vacaville…